Game’s up: President Richard Nixon says goodbye to his staff and cabinet in the White House after resigning. His wife Pat and daughter Tricia look on

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Given the election of Donald Trump as president, it might be supposed that Americans would be more sheepish about claiming they have an exceptional political system, but US rhetoric about exceptionalism has simply metamorphosed: the claim is now that the system of checks and balances devised by the constitution’s framers 230 years ago, since reinforced with checks by the powerful national security bureaucracy, gives the country a unique ability to withstand the menace of authoritarianism. The belief is that the CIA (Central Intelligence Agency), FBI (Federal Bureau of Investigation) and NSA (National Security Agency) act as safeguards against Trump’s potential excesses.

The bureaucracy was not part of the framers’ plan. When Thomas Jefferson was elected president in 1801, there were only 132 officials in the entire executive branch in Washington, and the White House had a staff of just one: Jefferson’s personal secretary.

Nor did the framers foresee the emergence of political parties. The democratic-republican party of Madison and Jefferson did not take shape until 1791, four years after the constitution was drafted. In the political order that emerged, members of Congress became invested in the success of a president of their own party. The constitution’s only prescribed remedy for executive malignity is impeachment, which allows the legislative branch to remove a member of the executive branch from office; it has turned out to be ineffectual in dealing with crimes and misdemeanours committed by friends and allies of the president.

A double-edged sword

The improvised solution that filled the gap at the end of the 19th century was the special prosecutor or independent counsel, who stands in for the Justice Department when suspicions of conflicts of interest cast doubt on the integrity of an inquiry into a branch of government. Contrary to popular impression, this did not originate during the Watergate crisis. The first special prosecutor, John B Henderson, was appointed in 1875 to lead the investigation of the Whiskey Ring, a conspiracy by whiskey makers, Treasury officials and politicians to divert tax revenues. There was also William Cook, who in 1881 investigated corruption in the US Postal Service; Francis Heney, who in 1905 investigated corruption surrounding the sale of public lands; and Archibald Cox, appointed in May 1973 to investigate the Watergate scandal, a case of political espionage involving the White House; he was fired by President Richard Nixon that October. The most recent is Robert Mueller, who since last May has been investigating potential relationships between Trump’s campaign staff and the Russian government.

Special prosecutors are a hit-and-miss solution. No automatic mechanism exists for their appointment, which is effectively at the discretion of the US Attorney General; no constitutional safeguard prevents their removal.

Administrative independence is a double-edged sword. It is necessary for special prosecutors, but is also relished by the national security bureaucracy, which has been pushing for greater autonomy for some years. Traditionally, it expressed opposition to disagreeable presidential policies passively, by slowing administrative processes. Recently the bureaucracy has shown its disapproval more openly, through public rebukes and leaks to the press.

Your enemy’s enemy

James Comey, while FBI director, felt no compunction about leaking Trump’s alleged request that he drop the investigation of National Security advisor Michael Flynn (accused of lying about his links to Russia). Philip Mudd, a former top-ranking official in both the FBI and the CIA defended his former colleagues’ efforts to check Trump: ‘So, the FBI people ... are ticked,’ he warned Trump on CNN on 3 February, ‘and they’re going to be saying [if] you think you could push us off this because you can try to intimidate the director, you’d better think again, Mr President. You’ve been around for 13 months; we’ve been around since 1908 [when the FBI was founded]. I know how this game is going to be played, and we’re going to win.’ ‘It’s not a good idea to piss off John Brennan [CIA director 2013-17],’ Obama’s UN ambassador Samantha Power tweeted on 17 March, after Brennan upbraided Trump. Senate minority leader Chuck Schumer said: ‘You take on the intelligence community, they have six ways from Sunday [of] getting back at you’ (1).

We’ve been around since 1908. I know how this game is going to be played, and we’re going to win
Philip Mudd

Such sentiments are short-sighted. The constitution does establish institutions to guard against unwise policy decisions by elected officials, but the national security bureaucracy is not one of them. Americans defer to the security agencies because they are seen as answerable to elected political representatives. Once that electoral connection is broken, their legitimacy under the constitution evaporates.

Many Americans detest Trump. In politics they say the enemy of your enemy is your friend, but that’s not always true. It requires almost wilful ignorance of recent US history to regard the security services as reliable guarantors of civil and political freedom. This is documented in part by the 1976 report of the Church committee, named after the Democratic senator from Idaho, Frank Church (2).

The Hollywood-style code names of the programmes it describes obscure their malignancy. They were not one-off pranks by lone cowboys, but deliberate operations painstakingly planned by security service leaders whose equivalents inspire such confidence today but, over decades, ‘turned their dark arts against the very people they were created to protect,’ as the intelligence scholar Loch Johnson writes (3). Their programmes show how easy it is for zealots, acting in secret, to shift the balance between liberty and security slowly and silently toward autocracy.

Cointelpro was an FBI programme in the 1960s and 70s, intended to expose and disrupt the activities of supposedly subversive organisations and individuals — opponents of the Vietnam war or campaigners for equal rights for minorities. The Internal Revenue Service regularly joined in the FBI’s efforts. Religious, academic, and media organisations were infiltrated. The programme also made efforts to incite violence among African American groups and discredit their leaders by mailing hundreds of anonymous letters; one sent to Martin Luther King was intended to drive him to suicide. All these initiatives were illegal. There is no evidence that the programme was authorised outside the FBI; its deputy director said he had never heard of Cointelpro.

Operation Chaos, a domestic spy programme run by the CIA between 1967 and 1973, also targeted the anti-war movement. Under it the agency monitored 7,200 individuals and over 100 organisations whose activities in the US were entirely lawful. In conjunction with Chaos, under Operation HTlingual (1952-73), the CIA illegally opened and read thousands of international letters a year to and from American citizens. No Congressional oversight subcommittee knew of it. In 1970 the heads of the CIA and FBI falsely assured Nixon that HTlingual had been discontinued.

Under Operation Shamrock, launched after the second world war, the NSA illegally collected copies of millions of international telegrams to or from US citizens. The Church committee noted it was ‘probably the largest governmental interception programme affecting Americans ever undertaken’ but it is doubtful any president authorised or was even aware of it. Nixon was only vaguely aware that the NSA existed. On 16 May 1973 his worried lawyer pointed out during a conversation in the Oval Office that, in authorising the Huston Plan — an operation conducted jointly by the CIA, NSA, and FBI targeting far-left activists, — Nixon had illegally directed the NSA to target US citizens. Nixon responded: ‘What is the NSA? What kind of action do they do?’

Safeguards for the future?

These abuses and others like them occurred decades ago, and it is assumed that they will not recur because judicial review and congressional oversight are now more rigorous. But this confidence is unjustified.

Occasionally, courts do intervene. In May 2015 a federal appeals court held to be illegal one of the NSA mass telephony collection programmes disclosed by Edward Snowden. Nearly always, however, the courts dismiss challenges to national security programmes on jurisdictional grounds, without addressing the fundamental issue. A typical case was that of Khalid al-Masri, a German citizen mistaken for an Al-Qaida leader who was abducted by the CIA in Macedonia in 2004 and held for several months in a prison in Afghanistan, where he was tortured. When released, he brought a lawsuit in the US, only to have the case dismissed because its adjudication would reveal state secrets.

The true nature of Congress’s supposedly newfound backbone was revealed by the investigation into the CIA’s detention and interrogation programme, the largest conducted on this subject. In a 6,000-page report, published in 2014, the Senate intelligence committee found that the CIA had systematically misled both Congress and the White House on the scope and gravity of the enhanced interrogation techniques it used on detainees (4). But the report made no effort to assess their legality, and recommended no reforms to prevent their recurrence. A footnote revealed that the committee was denied access to 9,400 documents relevant to its investigation, though it had requested access to them in three separate letters to President Barack Obama. He never replied, and the committee’s response was simply to drop the request. The committee is Congress’s meanest watchdog.

These are the agencies now embraced as the last guardians of American freedom. How could anyone seriously believe that, using the justification of a potential national security emergency, they would not quickly return to their old ways?

It is not their job to check presidential decisions. If anything, it is the president’s job to check theirs. When Trump accused the FBI of failing to prevent 17 schoolchildren being shot dead in Parkland, Florida, it’s forgivable to ask why he didn’t do something about it. After all, the FBI works for him. As Comey put it, ‘all of us ultimately report in the executive branch up to the president.’ If senior public servants take over what is properly the role of voters, they undermine the democracy they are supposed to protect.

Michael J Glennon

Michael J Glennon is a professor at the Fletcher School of Law and Diplomacy, Tufts University, Medford, Massachusetts, and the author of National Security and Double Government (Oxford, 2014).